Senate reform a fragile operation for Stephen Harper

OTTAWA — Reports that the federal government will go to the Supreme Court for an opinion on its Senate reform bill shows how delicate the job of getting the changes through Parliament has become for Prime Minister Stephen Harper, and the shines more light on concerns the government has that the provinces could scuttle reform plans.

By referring possible legislation to the Supreme Court, the Tories would be able to frame the question they want the court to answer, but there’s no guarantee that the court will come back with the answer the Conservatives want to hear, experts note. The court could impose conditions on the legislation, or advise that it wouldn’t survive a constitutional challenge, such as the one started in Quebec.

Sen. Bert Brown, Harper’s point man on Senate reform in the upper chamber, told the Vancouver Sun that he and Harper had talked about a Supreme Court reference before the summer break. But in an interview with Postmedia News, Brown said he hadn’t been told whether the government would ask the court to review the Senate Reform Act.

“The last discussion we had was just before the (summer) break and I think he a little frustrated it hasn’t moved as much as he would like it to have moved,” Brown said.

“There are serious policy problems with the legislation, but I think it is essentially constitutionally valid.”
– Stephen Scott, a constitutional law expert from McGill University

Liberal House leader Marc Garneau said the Grits — who make up the opposition in the Senate — believe provincial consent is required before making any changes to the Senate, saying the current bill is “unconstitutional.” Garneau wouldn’t say what it would take for Liberals to support the bill in either chamber — saying repeatedly that he wanted to see what the Supreme Court might say.

Critics have argued the bill creates a number of problems, including giving no indication of how to break disputes between the two chambers. Currently, the Senate usually defers to the Commons when there is a dispute over a piece of legislation.

“The government is waking up because they realize they have a bad bill that they should have consulted the Supreme Court. They know the Quebec government is waiting to go to court on this particular thing. There is no breaking mechanism if there are two elected houses. That’s a question that we all need to answer at some point,” Garneau told reporters outside the Commons.

“There are serious policy problems with the legislation, but I think it is essentially constitutionally valid,” said Stephen Scott, a constitutional law expert from McGill University.

The act would create a voluntary framework for provinces to elect nominees for the Senate. The elected nominees would be presented to the prime minister, who would still hold final say on who is appointed to the Red Chamber.

The bill would also set a one-term limit of nine years for senators appointed since 2008. Currently, senators serve until the age of 75.

Two news reports Monday cited unnamed government sources as saying that the Tories would ask the Supreme Court for a legal opinion about the bill. A government official, speaking on background, said the move was “simply speculation at this point.”

A spokeswoman for Democratic Reform Minister Tim Uppal wouldn’t confirm whether the government plans to turn to the Supreme Court for guidance.

“Canadians support a more democratic, effective, and representative Senate and so do we. Senate reform is a longstanding commitment of our government and the Conservative Party of Canada,” Kate Davis said in an email.

Should the court be asked to weigh in, it could take months for a decision, but it could also give the government the ability to avoid a lengthy constitutional challenge that could take years to wind its way through the courts.

The Senate Reform Act has been stuck on the legislative agenda since it was first introduced in June 2011. It was last debated in February when opposition MPs discussed the legislation, and the government on Monday didn’t provide an indication of when the bill would come to the Commons for debate.

Dissent within the Conservative caucus in the Senate has gone unabated since the Senate Reform Act was introduced just over one year ago. Just before the summer break, one high-profile outgoing Conservative senator, David Angus, publicly questioned whether change could come to the Senate without changing the Constitution, which the government hopes to avoid. Two weeks ago, Harper appointed five new senators, bolstering the Tory ranks in the Senate to 62. The government said all five appointees supported the Senate Reform Act, a similar statement to the one made in December 2011 when Harper appointed seven senators.

“It’s sensitive, it’s always been a sensitive topic,” said Kathy Brock, an expert on Canadian politics and federalism from Queen’s University in Kingston, Ont. “It’s very hard to move forward and change such a vital part of the Constitution. Incrementally is the way you’re going to get change.”